This may be the most
important recommendation of all. The greatest contributor to instability within
the litigation system has been the growth of outrageous, huge jury awards based
on nothing but feelings and sympathy and the desire to punish. In area after
area of law, juries have received judicial permission togo beyond real damages (like loss of income,
out-of-pocket medical and other expenses, loss of income-earning potential,
etc.), to the mushy world of "pain and suffering", "mental anguish", and
punitive awards against "bad faith" employers. All sense of proportion has been
lost in many of these cases, as multi-million dollar judgments are issued by
zealous jury members.

A
recent issue of the American Bar Association Journal, reporting on the 10
largest jury verdicts of 1988, detailed awards ranging from $30.4 million for
the estate of a Georgia woman killed by a truck with a stuck accelerator to $14
million for an aspiring male model injured in a car accident. In each case,
punitive and/or non-economic damages constituted a major (and often the
major) portion of the award.[52] The Michigan Court of Appeals was recently reviewing a case in which
plaintiffs representing four individuals killed when their coffee machine caught
fire due to a defective switch were awarded $42 million by a Wayne County
(Detroit) jury. Defendants and additional parties filing briefs with the court
argued in their appeal that the award had reached a point where it was "so
excessive as to 'shock the judicial conscience.’"
[53] Unfortunately, this case
was just recently settled before the court could address the issue.

Plaintiffs' advocates have often urged that the pain, anguish and suffering
incurred by individuals harmed by wrongful conduct "cannot be measured". A
proper response to such an argument might well be, "if it cannot be measured,
don't award it". The extravagant lavishing of huge damage awards for non-real,
immeasurable damages fails to fit any of the traditional purposes for awarding
additional sums. Does it make injured plaintiffs more whole? Does it produce
deterrence of wrongful behavior? Does it make the larger community more
responsible? At some point, after damages have reached a certain level, the
answer has to be no. After that point, there is mere redistribution of wealth,
mere punishment, mere expression of unrestrained sympathy. The American system
of law cannot sustain itself much longer if this trend continues, because the
market will no longer engage in sufficient money-producing activity to afford
such absurdly high costs.

It
is essential that reasonable limitations be set on non-real damages. If that
requires absolute damage award cutoffs or long schedules of damages for various
particular types of injury, then such must be the course taken, however "cruel"
it might seem in any one particularly grievous case. If the courts are unwilling
to show the necessary restraint, then the legislature must act by passing
statutory limitations on damages in civil cases.